APPEARANCE BEFORE COMPETITION APPELLATE TRIBUNAL - PART I

[Mr. M. GOVINDARAJAN]

Competition Appellate Tribunal

Chapter VIIIA of the Competition Act, 2002 (‘Act’ for short) provides for the establishment of Competition Appellate Tribunal.  Section 53A provides that the Central Government may establish an Appellate Tribunal to be known as Competition Appellate Tribunal (‘Tribunal’ for short)-

• to hear and dispose of appeals against any direction issued or decision made or order passed by the Commissioner under-

• Section 26 (2) - If there is no prima facie on the reference received from the Central Government or State Government or statutory body the Commission may close the case;
• Section 26(6) - If the Commission agrees with the report of the Director General that there is no contravention of the provisions of the Competition Act, the Commission may close the matter forthwith and pass such orders as deem fit;
• Section 27 -  Orders by Commission after inquiry into agreements or abuse of dominant position;
• Section 28 - Order by Commission division of enterprise enjoying dominant position;
• Section 31 - Orders of Commission in certain combinations;
• Section 32 - Order passed by the Commission on the acts take place outside India but having effect of competition in India;
• Section 33 - Interim order;
• Section 38 - Rectification or orders;
• Section 39 -  Execution of orders of Commission imposing monetary penalty;
• Section 43 - Penalty for failure to comply with directions of Competition Commission and Director General;
• Section 43A - Penalty for non furnishing of information on combinations;
• Section 44 - Penalty for making false statement or omission to furnish material information;
• Section 45 - Penalty for offences in relation  to furnishing of information;
• Section 46 - Order imposing lesser penalty.

• to adjudicate on claim for compensation that may arise from the findings of the Commission or the orders of the Appellate Tribunal in an appeal filed against  any findings of the Commissioner or under Section 42A or under Section 53Q(2) of this Act, and pass orders for the recovery of compensation under Section 53N of the Act.

The Central Government has set up the Competition Appellate Tribunal on 15.5.2009 having its headquarters at Delhi.  The Tribunal shall have ordinarily sittings at its headquarters at New Delhi at such other places as the Chairperson may by general or special order direct.

Composition of the Appellate Tribunal

Section 53C provides that the Appellate Tribunal shall consist of a Chairperson and not more than two other members to be appointed by the Central Government.  The Chairperson of the Appellate Tribunal shall be a person, who is, or has been a Judge of the Supreme Court or the Chief Justice of a High Court.  A member of the Appellate Tribunal shall be a person of ability, integrity and standing having special knowledge of, and professional experience of not less than twenty five years in, competition matters including competition law and policy, international trade, economics, business, commerce, law, finance, accountancy, management, industry, public affairs, administration or in any other matter which in the opinion of the Central Government, may be useful to the Appellate Tribunal.

Who can appear before the Tribunal?

Appeal may be filed before the Tribunal by-

• the aggrieved person;
• Central Government or State Government or local authority or any enterprise;
• The Competition Commission.

The aggrieved person may appear in person.   The following may be authorized to appear before the Tribunal on behalf of the appellant-

• Chartered Accountants;
• Company Secretaries;
• Cost Accountants;
• Legal Practitioners;
• Any of its officers; or
• Every person so authorized in this behalf.

Regulation 2(e) defines the term ‘authorized representative’ as-

• An individual, in case of individual complaint, sole proprietor or a proprietaryship firm;
• The Karta in case of Hindu Undivided Family;
• The Managing Director or Director duly authorized by the Board of Directors in case of a company;
• The President or Secretary in case of association or society;
• A partner in case of partnership;
• The Chief Executive Officer of the Co-operative Society or the local authority;
• The Joint Secretary of the Government of India or a State of Government; or
• The Chief Executive Officer in case of a statutory authority.

Procedure for filing appeal before Appellate Tribunal

• The Central Government or the State Government or a local authority or enterprise or any person aggrieved by any direction, decision or order may prefer an appeal to the Appellate Tribunal in the prescribed form;
• Every appeal shall be filed within a period of sixty days from the date on which a copy of the order is received by the appellant;
• The Tribunal may entertain an appeal after the expiry of the sixty days if it is satisfied that there was sufficient cause for not filing it within that period;
• The amount of fee payable for the appeal is as detailed below:

Sl. No.	Amount of penalty imposed	Amount of fees payable
1	Less than ₹ 20,000/-	Rs.1000/-
2	Rs.20,000 - Re. 1 lakh	Rs.2500/-
3	More than Re. 1 lakh	Rs.2500/- plus ₹ 1000/- for every additional one lakh of penalty or fraction thereof, subject to a maximum of ₹ 3 lakhs.

• Amount of fee payable in respect of any other appeal against a decision or direction or order of the Commission under the Act shall be ₹ 10000/- only.
• The Tribunal may, to advance the cause of justice and in suitable cases, waive payment of fee or portion thereof, taking into consideration the economic condition or indigent circumstances of the petitioner or appellant or applicant or such other reason, as the case may be, by an order for reasons to be recorded;
• The Memorandum of appeal shall consist the following:

• Details of appeal;
• Date of order against which the appeal is filed;
• Address of the appellant;
• Addresses of the respondents;
• Jurisdiction of the appellate tribunal;
• Limitation;
• Facts of the case;
• Details of facts in issue and question of law;
• Grounds raised with legal provisions;
• Details of interim application, if any.

• Every Memorandum of appeal shall be filed in five copies and shall be accompanied with the certified copy of the order against which the appeal is filed;
• Where a party is represented by the authorized representative, a copy of the authorization to act as the authorized representative and written consent thereto  by such authorized representative  shall be appended to the Memorandum of Appeal;
• Every memorandum of appeal presented to the Appellate Tribunal shall be in English and in case it is on some other Indian language, it shall be accompanied by a copy translated in English and shall be fairly and legibly type written, lithographed or printed in double spacing on one side of standard petition paper with an inner margin of about four centimeters width on top and with a right margin of 2.5 cm, and left margin of
• 5 cm, duly paginated, indexed and stitched together in paper book form.;
• On receipt of an appeal, the Appellate Tribunal may after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the direction, decision or order appealed against;
• Appeal or application, counters, rejoinders, supplemental pleadings  or other documents shall be accompanied by four copies  for the Tribunal’s record and such additional number of copies thereof for being served on the respondents;
• No pleadings, subsequent to the reply, shall be presented except by the leave of the Tribunal upon such terms as the Tribunal may think fit;
• Every notice or other documents, required to be served on or delivered to any person may be sent by the Registrar by speed post or courier or by e-mail  to the person or his agent empowered to accept service;
• The Tribunal, if sufficient cause is shown at any stage of proceedings adjourn the hearing for such time or date as it  may consider appropriate  provided that in any case  the Tribunal not grant more than three adjournments during the course of the whole proceeding;
• If a party to the proceeding does not appear on the day fixed for hearing, the Tribunal may continue with the proceedings in the absence of such party;

Powers of the Tribunal

• The Appellate Tribunal shall not be bound by the procedure laid down in the Code of  Civil Procedure, 1908, but shall be guided by the principles of Natural Justice and, subject to the other provisions of this Act and of any rules made by the Central Government, the Appellant Tribunal shall have power to regulate its own procedure including the places at which they shall have their sittings.  The Appellate Tribunal shall have, for the purposes of discharges its functions under this Act, the same powers as are vested in a Civil Court under the Code of  Civil Procedure, 1908 while trying a suit in respect of the following matters, namely:-
  • Summoning and enforcing the attendance of any person and examining him on an oath;
  • Requiring the discovery and production of documents;
  • Receiving evidence on affidavit;
  • Subject to the provisions of Sections 123 and 124  of the Indian Evidence Act, 1872 requisitioning any public record or document or copy of such record or document from any office;
  • Issuing commission for the examination of witnesses or documents;
  • Reviewing its decisions;
  • Dismissing a representation for default or deciding it ex-parte;
  • Setting aside any order of dismissal of any representation for default or any order passed by it as ex-parte;
  • Any other matter which may be prescribed. 
• Every proceedings before the Appellate Tribunal shall be deemed to be judicial proceedings within the meaning of Sections 193 and 228 and for the purposes of Section 196, of the Indian Penal Code and the Appellate Tribunal shall be deemed to be a civil court for the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.